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New York Association for Gender Rights Advocacy
24 West 25th Street, 9th floor
New York, NY 10010
(212) 675-3288 ext. 266
fax:  (212) 675-3466

NYAGRA's mission is to advocate for freedom of gender identity and expression for all.

The official NYAGRA website

New York Association for Gender Rights Advocacy

NYAGRA’s Response to ESPA’s Open Letter to New York’s LGBT Community on SONDA 25 February 2002

This letter from the board of directors of the New York Association for
Gender Rights Advocacy is intended as a response to the open letter to
the LGBT community from the Empire State Pride Agenda regarding the
issue of transgender inclusion in the the Sexual Orientation Non-
Discrimination Act (SONDA).

In our view, the open letter from Joe Grabarz (executive director) and
Matt Foreman (executive director, 1997-2001) is an entirely inadequate
response to the call for a fully transgender-inclusive SONDA bill that
we and other transgender advocacy organizations have made. In the
letter, the Pride Agenda leadership asserts that “we have done more to
make government responsive to transgender issues than any other single
organization in the state.” We in NYAGRA would like to think that we
have contributed as much, if not more so, to that effort than has ESPA.
After all, when we first met with the Pride Agenda staff in November
1998 (shortly after our formation in June 1998), ESPA was really doing
nothing on transgender issues, and it was that meeting that prompted
ESPA to begin taking transgender issues seriously. Since the Pride
Agenda leadership have taken the time to lay out a full-length apologia
for their position on SONDA and transgender issues, we have decided to
respond with a point-by-point rebuttal.

1. The Scope of SONDA

ESPA: “Opponents of SONDA are saying that it will only cover ‘only
those who can pass for straight.’ This is completely untrue. The
actions and perception of the discriminating party—not the sexual
orientation of the victim—are what’s relevant.”

NYAGRA: We in NYAGRA have never claimed this (nor do we view ourselves
as opponents of SONDA). Rather, we have pointed to the potential legal
loophole in the language of SONDA. It is at least conceivable that an
employer could discriminate against the most gender-variant
(non-transgendered) lesbians and gay men even under SONDA. The case of
Dawn Dawson is instructive here. An extremely masculine lesbian hair
stylist, Dawson was fired last year by a hair styling salon in Manhattan
even though her more feminine lesbian colleagues at the firm were not.
Circumstantial evidence strongly suggests that it was Dawson’s gender
presentation that was the issue for the firm. And the firm may claim
that they fired Dawson for ‘inappropriate’ gender expression, not
because she was a lesbian. This potential legal lacuna is precisely why
we in NYAGRA have advocated for inclusion of terms such as ‘gender
identity or expression,’ not ‘transgender,’ in legislation, because such
language would protect the broadest category of people, including
non-transgendered gender-variant lesbians, gay men, and bisexuals (LGBs)
as well as transsexual and transgendered people. In opposing inclusion
of ‘gender identity or expression’ in SONDA, the Pride Agenda does a
disservice to gender-variant LGBs whose protection under SONDA would be
enhanced by such language.

ESPA: “There will be many cases where SONDA will apply to a firing of a
straight transgender person, and it will almost always apply to the
firing of a gay or lesbian trans person...”

NYAGRA: Such confidently sweeping statements require evidence, which
the letter’s authors do not provide. In reality, it would depend very
much on the circumstances of the case, and the extent to which the
transgender identity of the plaintiff could be connected to ‘perceived
sexual orientation.’ Rather than offer evidence for this assertion, the
letter’s authors shift the focus to the state hate crimes law enacted in
July 2000 (without the transgender-inclusive language that NYAGRA
advocated for), contending that a bias crime against a transgendered
person under that law could be prosecuted “as a hate crime based on
gender, according to an interpretation of existing law by a number of
New York district attorneys, as well as the New York State Attorney
General’s Hate Crime Manual for Prosecutors.” It is important here to
point out that opposition to inclusion of gender identity and expression
within the Hate Crimes Bill Coalition was led by two individuals – Matt
Foreman of ESPA and Howie Katz of the Anti-Defamation League (who was
coordinator of the coalition). We in NYAGRA would commend the Pride
Agenda for going to the attorney general to seek transgender inclusion
in his manual for prosecutors, but we have to point out that those
guidelines are not legally binding on any district attorney in the
state. And the only district attorneys that have publicly pledged to
prosecute transgenderphobic hate crimes under the new statute are those
in Westchester, Brooklyn, and Queens – three relatively liberal
jurisdictions downstate. The real question is whether more conservative
DAs upstate will prosecute, and as yet, there is no evidence either way.

2. A Strategy to Gain Non-Discrimination Protections for
Transgender Persons

ESPA: An overwhelming passage in New York City of Intro. 754 is
probably the best thing that can be done right now to further the cause
of statewide transgender
discrimination protection.

NYAGRA: Addition of ‘gender identity and expression’ to SONDA is
undoubtedly the best thing that can be done right now to further the
cause of statewide transgender discrimination protection.

ESPA: “At one point, it appeared that the City would issue an opinion
that existing law already covered anti-transgender discrimination. (This
was blocked only by the intervention of both the offices of the Mayor
and the Speaker.) When that did not materialize, we focused exclusively
on getting a bill (Intro. 754) passed.”

NYAGRA: It is not clear to us what ESPA is referring to here. The only

City opinion on the issue was the specious and ill-informed memorandum
from corporation counsel (3.1.2001) that Grabarz and Foreman refer to
later in their letter.

ESPA: “We were the first people to discuss the bill with candidate
Michael Bloomberg.”

NYAGRA: Actually, the very first conversation that anyone from the
Bloomberg campaign had with advocates for the bill was one between
Jonathan Capehart (the Bloomberg campaign’s LGBT liaison) and NYAGRA’s
Pauline Park.

ESPA: “When we couldn’t find [a transgendered complainant who had
already filed a complaint with the New York City Human Rights
Commission] from the past, we tried to find someone to file a
complaint. NYAGRA was unable to find anyone to do that.”

NYAGRA: This is not entirely accurate. In fact, NYAGRA was able to
locate a few individuals who had filed complaints that had not been
heard, but it was not possible to determine whether the lack of progress
on those cases was due to the nature of the cases. And we were able to
find a few new people to file complaints, but such cases take a very
long time to process, and so results are not quickly forthcoming.
Grabarz and Foreman claim that “many legal experts believe” that
transgendered people are already covered under New York City human
rights law, and yet they cite no such experts; we certainly know of no
credible expert on transgender law who has claimed this.

ESPA: “We are disappointed, however, that some elements of the
transgender community and others are so quick to dismiss the hard work
of NYAGRA, the Pride Agenda, and friends on the City Council to pass
Intro. 754. We are also disappointed that many are discounting the huge
significance that passage of Intro. 754 would have for the transgender
community not just here in NYC but as a stepping-stone towards future
passage in Albany of statewide protections in the same way the City’s
1987 law adding sexual orientation as a protected category has helped
the efforts for SONDA. We also think it is a mistake to treat its speedy
passage as a foregone conclusion, instead of putting advocacy efforts
into insuring that it be brought to a vote quickly and passed by a
substantial, bipartisan margin (if not unanimously).”

NYAGRA: We in NYAGRA continue to work for passage of Intro 754 (now
Intro 24), and we certainly do not discount the significance of passage
of this bill, which would protect people from discrimination based on
gender identity or expression in the largest city in the country. Much
as we value ESPA’s continued support on the New York City bill, we in
NYAGRA do not view the likely passage of Intro 24 as a legitimate excuse
for not amending SONDA. After all, there are transsexual,
transgendered, and gender-variant people upstate as well, and they
deserve (and need) protection from discrimination as much as those in
the five boroughs, if not more so.

The ESPA letter outlines the Pride Agenda’s work on local ordinances
elsewhere in the state, pointing to Rochester and Suffolk County as
victories for trans-inclusive non-discrimination legislation, but
without mentioning the failure to get similar language in Westchester
County’s anti-discrimination law in 2000.

ESPA: “We were informed that if this definition stayed in the bill, the
entire effort—which included anti-discrimination protections on the
basis of race, religion, ethnicity, etc.—would be defeated. The best we
could do was to agree to the elimination of definitions for both the
term ‘sexual orientation’ and ‘gender,’ thus leaving the implementation
and interpretation of the law open to favorable administrative or
judicial interpretation.”

NYAGRA: While it is true that there were co-sponsors of the Westchester
bill who acted to remove the ‘social characteristics’ language from the
definition of gender, it is also true that ESPA, by most accounts,
seemed unwilling to push those legislators to retain that language.
ESPA’s top priority was getting sexual orientation included in the bill,
and they were unwilling to make the same commitment to
transgender-inclusive language.

ESPA: “Contrary to allegations otherwise, at no time during this local
organizing work did Tim Sweeney or anyone else from the Pride Agenda
promise to try to amend SONDA if we were successful in getting three or
four localities to pass trans-inclusive legislation.”

NYAGRA: We in NYAGRA have never made this claim, but it is also
important to point out that the Pride Agenda made no effort whatsoever
in getting such language into the Nassau County non-discrimination
legislation enacted during this same period, and in that instance, did
not even consult NYAGRA on the issue.

3. The Prospects for a Trans Inclusive Non-Discrimination Bill in

ESPA: “It is only now - 15 years after New York City added sexual
orientation to its human rights laws – that Albany is prepared to take
up SONDA.”

NYAGRA: We in NYAGRA would like to point out that the New York City gay
rights bill was passed in 1986 (and came into effect in 1987), and that
it is only now – 16 years later – that a transgender rights bill is
poised for passage in the City Council. The question that we in NYAGRA
would ask is, why should transgendered people have to wait another 15 or
16 years after SONDA passes to get inclusion in state human rights law?

ESPA: “We are nowhere near this point on gender identity. We are hard
pressed to find a majority of Democrats, much less Republicans, who are
willing to go on record voting in favor of transgender rights.”

NYAGRA: It is important to point out here that ESPA has never told
legislators in Albany that transgender inclusion is crucial to them. If

ESPA has not been able to get Democratic or Republican members of the
state legislature to go on record in support of transgender rights,
perhaps it is because they have never tried. When representatives from
NYAGRA and other transgender organizations met in January with the chief
of staff to Assemblymember Steve Sanders (SONDA’s primary sponsor in
that chamber), he told us that Sanders was open to transgender
inclusion, but that the problem was that “ESPA owns this bill.” In a
subsequent conversation with NYAGRA, that same staff member told us that

“If the Pride Agenda and Deborah Glick come to Steve and ask him to
amend the bill [before passage in the Assembly], he will.”

ESPA: “Bluntly, the groundwork has not been done - not one public
opinion poll, very little support to political candidates, few
constituent visits, letters or phone calls.”

NYAGRA: We in NYAGRA have to point out that we were more than willing
to do this groundwork, working in partnership with ESPA, when we first
came to them in November 1998 had they only been willing to do so, but
they were not. Perhaps three years of ‘groundwork’ and ‘educating’
legislators would have made the difference. But more than three years
later, this response from ESPA looks more like an excuse – and not a
very good one – for simply ignoring the need for transgender inclusion
in SONDA or even dismissing the need for such inclusion altogether.

ESPA: “This is the cold political reality of Albany and we challenge
anyone to give credible evidence otherwise. This reality can change, but
it will take time and work.”

NYAGRA: When the Pride Agenda was willing to work with NYAGRA on the
New York City bill, we were able to change that reality. It is
ultimately a question of political will, and when it comes to SONDA,
ESPA simply does not have the political will or the commitment to full
transgender inclusion in state law to be willing to engage that process
of changing reality.

ESPA: “The question then is: should we abandon SONDA, now on the verge
of passage, and delay for many years protecting the nearly 40% of the
state’s gay, lesbian and bisexual population who live in upstate towns
and counties without legal protections from discrimination? We say no.”

NYAGRA: For us in NYAGRA, the question is, should we abandon the effort
to include transgendered people who live in upstate towns and counties
without legal protections from discrimination? We say no. We believe
that transgendered and gender-variant people upstate have just as much
right to legal protection from discrimination as non-transgendered LGB

ESPA: “Obviously, this does not mean Albany should be ignored in terms
of trans issues, that the Pride Agenda’s commitment to this issue is not
real, or that anyone should have to wait a decade for a trans-specific
state law. In fact, as noted above, the Pride Agenda has been the first
and only organization in the state to begin introducing the topic to
state government through devices like a resolution on Dignity for All
Students Week (which was passed with trans specific language), changes
in hate crimes reporting language with Division of Criminal Justice
Service (which looks like it will require that hate crimes based on
gender be identified as anti-male, anti-female or anti-gender identity
or expression), and work with the State Education Department to address
bias harassment in schools (where the Commissioner of Education
committed to work on issues of harassment against lesbian, gay, bisexual
and transgender students).”

NYAGRA: It is important to point out here that it was NYAGRA that first
raised the issue of inclusion of gender identity and expression in DASA,
and that ESPA initially resisted our efforts on this. It was only our
insistence on the necessity for protecting transgendered and genderqueer
youth that prompted ESPA to talk to Assembly education committee members
about trans-inclusion in the bill. ESPA’s Ross Levi facilitated a
conference call with NYAGRA representatives and Assemblymember Steve
Sanders’ chief of staff which led to inclusion of such language in the
redrafted bill that was reintroduced in the Assembly in January 2001.
We worked with ESPA’s Ross Levi to facilitate the inclusion of gender
identity and expression in the DCJS guidelines for reporting language;
but while helpful, this is no substitute for a change in statute law
through an amendment to the 2000 hate crimes law, something which the
Pride Agenda has as yet refused to commit to publicly.

ESPA: “Passage of SONDA will help, not hinder, future trans-inclusive
legislation in Albany... This will lay a good political foundation and
prepare legislators to do the right thing on transgender issues.”

NYAGRA: Legislators that we have spoken with were under the impression
that sexual orientation includes transgendered people; hence, the
political risk to passage of SONDA that ESPA asserts amending the bill
would engender represents an entirely untested hypothesis. We in NYAGRA
would like to ask how many legislators ESPA has queried on the question
of trans-inclusion in the bill, and how many would say that they would
vote for the unamended SONDA but vote against a trans-inclusive SONDA.

4. The Need to Pursue All Avenues for Achieving Non-Discrimination

ESPA: “Unlike sexual orientation discrimination, there is a strong
possibility under existing case law (cases like Richards v. United State
Tennis Ass’n and Rentos v. Oce-Office Syst.) that anti-transgender
discrimination is already covered under New York State law.”

NYAGRA: In fact, the Richards case involves a post-operative
transsexual and the Rentos case involves a transitioning transsexual.
Both decisions were narrowly written, and so there is no evidence to
suggest that they would provide any basis for believing that
transgendered people (other than post-op transsexuals) would be covered
under state human rights law. The Rentos case is applicable to New York
City law, and simply affirms the earlier Maffei case. Rentos turns on
the change of legal and anatomical sex by the plaintiff (Corinne
Rentos), and was so narrowly written that it does not provide any
confidence that it could be extended to include the vast majority of
transgendered and gender-variant people, who do not undergo medical
transition. The Richards case establishes only that post-op MTF
transsexual professional tennis players cannot be banned from
professional women’s tennis merely on the basis of a chromosomal sex

ESPA: “Despite the fact that members of the transgender community
reject this approach to achieving non-discrimination protection, it
needs to be discussed. A dozen state courts, mostly here in the
northeast, have already interpreted language in their laws similar to
New York’s Human Rights law as prohibiting discrimination on the basis
of gender presentation.”

NYAGRA: Court rulings under state law elsewhere would only have
‘persuasive’ and not ‘precedential’ value in cases under New York State
law; in other words, at best, they might be used by a sympathetic judge
as material in writing a pro-transgender opinion; but they would not be
legally binding on any court in New York state.

ESPA: “The New York State Attorney General and a number of New York
District Attorneys have interpreted sex and/or gender as including
transgender people in the context of hate crimes legislation.”

NYAGRA: Once again, the New York state attorney general’s opinion is
not legally binding on any district attorney in the state but merely
constitutes a recommendation to prosecutors regarding implementation of
the hate crimes law.

ESPA: “This issue can be resolved through a legal challenge, or working
within the state’s bureaucracy. It is not unusual to follow a strategy
that utilizes the courts or administrative challenges to achieve civil
rights before or while seeking for a codification of those rights by

NYAGRA: Litigation can be an adjunct to legislation, but it is no
substitute for it. Litigation is a risky business, as the long and
dismal history of such attempts by transgendered plaintiffs from Karen
Ulane onwards has demonstrated. Most transgendered plaintiffs have lost
their cases in jurisdictions around the country. Litigation is also
expensive and time-consuming. Given the backlog in the New York State
Human Rights Commission, it can take ten years or more for a case to
wind its way through the state administrative process. Transgendered
and gender-variant people cannot wait and should not have to wait
another decade or more for basic human rights in this state. It is also
emphatically not the right of the Pride Agenda to determine how the
transgender community pursues its rights. Transgender community
organizations will determine for themselves how to pursue civil rights
legislation in this state. And the fact that ESPA is encouraging
transgender advocates to pursue transgender rights under state law
through litigation itself demonstrates ESPA’s lack of commitment to
transgender rights. If ESPA were genuinely committed to full
transgender inclusion in state human rights law, it would commit now to
supporting legislation to achieve that goal. The fact that ESPA is not
willing even to commit to an amendment to SONDA (or to state human
rights law broadly) post-passage shows that ESPA’s insistence on
litigation is simply a diversionary tactic, an attempt to divert
attention from the real issue, which is ESPA’s lack of commitment to
transgender rights. In sum, then, ESPA’s open letter to the community
constitutes an ill-informed apologia for an adamant and inexcusable
refusal to consider transgender inclusion in SONDA. The specious
arguments in the Pride Agenda’s open letter simply do not withstand
close and careful scrutiny. The ultimate issue is in fact ESPA’s
unwillingness to consider the issues of gender identity and expression
their issues.